Opinion
Decided June 27, 1929.
In libel under P. L., c. 372, for the forfeiture of an automobile seized while used in the illegal transportation of intoxicating liquors the rights of an innocent lienholder are not excepted from the purview of the statute, but his Hen is unaffected by the conduct of one who as against him never had any rightful possession thereof. Hence, the lien of a conditional vendor under a contract of sale whereby the vendee agreed neither to sell nor relet an automobile without notice to the vendor cannot be forfeited where the vendor had no knowledge of any purpose to make such illegal use, nor of any sale or reletting to the wrongdoer, and the wrongdoer was neither the agent nor the servant of the vendee.
LIBEL, for the forfeiture of an automobile seized while being used in the illegal transportation of intoxicating liquors. Transferred by Scammon, J., on an agreed statement of facts.
The claimant, a dealer in automobiles and automobile securities, delivered the car on March 25, 1927, to one Smith under a conditional sales contract, by the terms of which it leased the same to Smith for rental payable one-half down and the balance in ten monthly payments, evidenced by notes, upon the full payment of which the rent was to cease and the car become the absolute property of the lessee. The claimant's records show an installment payment duly made on April 25, but no further payments. The contract provided that the lessee, or his legal representatives, might enjoy the use and possession of the car until the breach of the conditions therein, and contained a stipulation by the lessee that he would not "sell, mortgage or relet said automobile without notice to Fellsway Motor Mart of my [his] intention so to do."
On the day of the sale, without the consent or knowledge of the conditional vendor, the car was registered in Maine in the name of Leslie B. Swett, by whom it was being used in the illegal transportation of intoxicating liquors when it was seized in this state on May 31. The claimant had no knowledge of or, from what had come to its attention, any reason to believe that the automobile had been or would be used for the illegal purpose. Neither Smith nor Swett make any defence. The claimant requested rulings that, as against it, the state was not entitled to a decree of forfeiture of the car, and, if so entitled, only to the extent of the equitable interest of Smith therein. The claimant excepted to the denial of such requests, and to a ruling that as against it the state was entitled to a decree of forfeiture.
Burt R. Cooper, solicitor, for the state.
Hughes Burns and Goldman Mathews (of Massachusetts), for the claimant.
P. L., c. 144, s. 40 provides for the seizure of automobiles engaged in the illegal transportation of intoxicating liquors and for the forfeiture thereof on proceedings in accordance with the provisions of P. L., c. 372. The rights of innocent holders of liens thereon are not excepted from the purview of the statute. Such a holder takes "the chance as to what one in lawful possession of the car might do with it" (State v. Buick Coach, 83 N.H. 288, 289), but his rights are unaffected by the conduct of one who, as against him, never had any rightful possession thereof. The test to determine the state's right to forfeiture of such lienholder's interest, as developed in the cases which have hitherto arisen, is apparently to inquire whether he has intrusted the property to the wrongdoer, or to one through whom the wrongdoer has acquired rightful possession as against such lienor. Van Oster v. Kansas, 272 U.S. 465, 466; Commonwealth v. Certain Motor Vehicle, 261 Mass. 504, 507, 509; White Auto Co. v. Collins, 136 Ark. 81, 83; Sandlovich v. Hawes, 113 Neb. 374; United States v. Mincey, 254 Fed. Rep. 287, 288; United States v. One Saxon Automobile, 257 Fed. Rep. 251, 252; United States v. One Ford Coupe Automobile, 21 Fed. Rep. (2d) 639, 640; State v. Morris, 124 Kan. 143, 148; Buchholz v. Commonwealth, 127 Va. 794, 797; Pennington v. Commonwealth, 127 Va. 803, 806. See Dobbins Distillery v. United States, 96 U.S. 395, 401, 404. But it is unnecessary for us to determine whether the rule here in force goes to such extreme limits.
By an express provision of the contract Smith was given the use and possession of the car for himself and his "legal representatives" during the term of the contract upon his agreement to neither sell nor relet it without notice to the conditional vendor. There are no facts from which it can be found that Swett was the agent or servant of the vendee Smith. On the contrary the registration in Swett's name imports a change in title. This natural inference is not overcome by Smith's payment of the April installment. Such payment was as consistent with his transfer of title and continued obligation on the notes, or with the sale of his equity upon terms which called for payments through him, as it was with his continued ownership. Any inference of the vendor's acquiescence in the transfer to Swett which might be drawn from the latter's possession of the car is met by the agreed fact that the registration in his name was without the vendor's consent or knowledge. It cannot be found on the record as it stands that the offense was committed by one intrusted by the vendor with the possession and use of the offending vehicle. The only fair inference that can be drawn from the agreed facts is that, as against this claimant, the automobile was never in the rightful possession of Swett. The order therefore must be
Exceptions sustained.
All concurred.